Supreme Court Justice Antonin Scalia said Wednesday the court eventually will have to determine the legality of far-reaching National Security Agency spying programs, though he is not convinced the court is equipped to based on modern security threats.

Scalia, speaking at the Northern Virginia Technology Council,
said elected officials are most qualified to discern how much
personal information of Americans the NSA can collect, and under
what circumstances.

"The consequence of that is that whether the NSA can do the
stuff it's been doing ... which used to be a question for the
people ... will now be resolved by the branch of government that
knows the least about the issues in question, the branch that
knows the least about the extent of the threat against which the
wiretapping is directed," he said.

Nevertheless, the Supreme Court started down that path in the
1960s, putting restrictions on wiretapping without a judge’s
approval. The court held in 1967 that there were Fourth Amendment
prohibitions on wiretapping conversations of Americans.

The Warren court found that "there's a generalized right of
privacy that comes from penumbras and emanations, blah blah blah,
garbage,” Scalia said of the decision.

Scalia said the Constitution calls for a balance between whether
a search or seizure is reasonable depending on the threat posed.

He said airport pat-downs are an example of the balance.

"That's a terrible intrusion of privacy," he said. "But
you're willing to do it because of the seriousness of the
threat."

After disclosures about NSA surveillance programs became
public this summer via former NSA contractor Edward Snowden, the
Electronic Privacy Information Center asked the high court to bar
the NSA from collecting call records of millions of US customers.
The court has not made a decision about hearing the case.

The court ruled in a 5-4 vote earlier this year to not hear a
case challenging a 2008 warrantless wiretapping law -- the FISA
Amendments Act, which allows the NSA to conduct broad
surveillance -- based on its view that the plaintiffs did not
have proper standing to contest the law. The court said the
plaintiffs could not prove they were subject to the secret spying
program.

"The FISA Amendments Act is a sweeping surveillance statute
with far-reaching implications for Americans' privacy. This
ruling insulates the statute from meaningful judicial review and
leaves Americans' privacy rights to the mercy of the political
branches," the American Civil Liberties Union’s Jameel
Jaffer, who argued the case before the justices, said in February
when the case was dismissed.

Scalia did not openly solicit his thoughts on surveillance, but
was asked about it by an attendee. He said later that he was
speaking about general NSA surveillance, including vast
collection of phone records, when he repeatedly used the term
“wiretap.”

He said tech companies should speak up and tell customers if data
was illegally confiscated by the government.

"But it's pretty hard to know that. ... If it's a governmental
wiretap, presumably it's been approved by somebody, some lawyer
expert in the field who said it was OK, and you better be damn
sure you're right before you blow the cover,” he said.

A groups of US senators revealed legislation Wednesday that would
curb the NSA’s mass collection of phone records and reform the
Foreign Intelligence Surveillance Court, which approves NSA spying orders.